Digital Economy Bill (HC Bill 45)

(6)The notice is a valid notice for the purposes of this code, but the person giving the notice must bear any costs incurred by the operator as a result of the notice not being in that form.

(7)In any proceedings under this code a certificate issued by OFCOM5stating that a particular form of notice has been prescribed by them as mentioned in this paragraph is conclusive evidence of that fact.

Prescription of notices by OFCOM

86(1)OFCOM must prescribe the form of a notice to be given under 10each provision of this code that requires a notice to be given.

(2)OFCOM may from time to time amend or replace a form prescribed under sub-paragraph (1).

(3)Before prescribing a form for the purposes of this code, OFCOMmust consult operators and such other persons as OFCOM think 15appropriate.

(4)Sub-paragraph (3) does not apply to the amendment or replacement of a form prescribed under sub-paragraph (1).

Procedures for giving notice

87(1)A notice given under this code must not be sent by post unless it 20is sent by a registered post service or by recorded delivery.

(2)For the purposes, in the case of a notice under this code, of section 394 of this Act (service of notifications and other documents) and section 7 of the Interpretation Act 1978 (references to service by post), the proper address of a person (“P”) is—

(a)25if P has given the person giving the notice an address for service under this code, that address, and

(b)otherwise, the address given by section 394.

(3)Sub-paragraph (4) applies if it is not practicable, for the purposes of giving a notice under this code, to find out after reasonable 30enquiries the name and address of a person who is the occupier of land for the purposes of this code.

(4)A notice may be given under this code to the occupier —

(a)by addressing it to a person by the description of “occupier” of the land (and describing the land), and

(b)35by delivering it to a person who is on the land or, if there is no person on the land to whom it can be delivered, by affixing it, or a copy of it, to a conspicuous object on the land.

(5)Sub-paragraph (6) applies if it is not practicable, for the purposes 40of giving a notice under this code, to find out after reasonable enquiries the name and address of the owner of an interest in land.

(6)A notice may be given under this code to the owner—

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(a)by addressing it to a person by the description of “owner” of the interest (and describing the interest and the land), and

(b)by delivering it to a person who is on the land or, if there is 5no person on the land to whom it can be delivered, by affixing it, or a copy of it, to a conspicuous object on the land.

Part 16Enforcement and dispute resolution

10Introductory

88This Part of this code makes provision about—

(a)the court or tribunal by which agreements and rights under this code may be enforced,

(b)the meaning of references to “the court” in this code, and

(c)15the power of the Secretary of State by regulations to confer jurisdiction under this code on other tribunals.

Enforcement of agreements and rights

89An agreement under this code, and any right conferred by this code, may be enforced—

(a)20in the case of an agreement imposed by a court or tribunal, by the court or tribunal which imposed the agreement,

(b)in the case of any agreement or right, by any court or tribunal which for the time being has the power to impose an agreement under this code, or

(c)25in the case of any agreement or right, by any court of competent jurisdiction.

Meaning of “the court”

90(1)In this code “the court” means—

(a)in relation to England and Wales, the county court,

(b)30in relation to Scotland, the sheriff court, and

(c)in relation to Northern Ireland, a county court.

(2)Sub-paragraph (1) is subject to provision made by regulations under paragraph 91.

Power to confer jurisdiction on other tribunals

91(1)35The Secretary of State may by regulations provide for a function conferred by this code on the court to be exercisable by any of the following—

(2)Regulations under sub-paragraph (1) may make provision for the function to be exercisable by a tribunal to which the regulations apply—

(a)instead of by the court, or

(b)5as well as by the court.

(3)The Secretary of State may by regulations make provision—

(a)requiring proceedings to which regulations under sub-paragraph (1) apply to be commenced in the court or in a tribunal to which the regulations apply;

(b)10enabling the court or such a tribunal to transfer such proceedings to a tribunal which has jurisdiction in relation to them by virtue of such regulations or to the court.

(4)The power in section 402(3)(c) for regulations under sub-paragraph (1) or (3) to make consequential provision includes 15power to make provision which amends, repeals or revokes or otherwise modifies the application of any enactment.

(5)Before making regulations under sub-paragraph (1) or (3) the Secretary of State must—

(a)so far as the regulations relate to Scotland, consult the 20Scottish Ministers;

(b)so far as the regulations relate to Northern Ireland, consult the Department of Justice in Northern Ireland.

Award of costs by tribunal

92(1)Where in any proceedings a tribunal exercises functions by virtue 25of regulations under paragraph 91(1), it may make such order as it thinks fit as to costs, or, in Scotland, expenses.

(2)The matters a tribunal must have regard to in making such an order include in particular the extent to which any party is successful in the proceedings.

30Applications to the court

93Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 (SI 2011/1210SI 2011/1210) makes provision about the time within which certain applications to the court under this code must be determined.

35Appeals in Northern Ireland

94Article 60 of the County Courts (Northern Ireland) Order 1980 (ordinary appeals from the county court in civil cases) is to apply in relation to any determination of the court in Northern Ireland under this code in the same manner as it applies in relation to any 40decree of the court made in the exercise of the jurisdiction conferred by Part 3 of that Order.

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Part 17Supplementary provisions

Relationship between this code and existing law

95(1)This code does not authorise the contravention of any provision of 5an enactment passed or made before the coming into force of this code.

(2)Sub-paragraph (1) does not apply if and to the extent that an enactment makes provision to the contrary.

Relationship between this code and agreements with operators

96(1)10This code does not affect any rights or liabilities arising under an agreement to which an operator is a party.

(2)Sub-paragraph (1) does not apply in relation to paragraph 60(2) to (5), paragraph 95 or Parts 3 to 6 of this code.

Ownership of property

9715The ownership of property does not change merely because the property is installed on or under, or affixed to, any land by any person in exercise of a right conferred by or in accordance with this code.

Conduits

98(1)20This code does not authorise an operator to do anything inside a relevant conduit without the agreement of the authority with control of the conduit.

(2)The agreement of the authority with control of a public sewer is sufficient in all cases to authorise an operator to exercise any of the 25rights under this code in order to do anything wholly inside that sewer.

(3)In this paragraph the following expressions have the same meanings as in section 98 of the Telecommunications Act 1984—

(a)“public sewer” and “relevant conduit”;

(b)30references to the authority with control of a relevant conduit.

Duties for OFCOM to prepare codes of practice

99(1)OFCOM must prepare and publish a code of practice dealing with—

(a)35the provision of information for the purposes of this code by operators to persons who occupy or have an interest in land;

(b)the conduct of negotiations for the purposes of this code between operators and such persons;

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(c)the conduct of operators in relation to persons who occupy or have an interest in land adjoining land on, under or over which electronic communications apparatus is installed;

(d)such other matters relating to the operation of this code as 5OFCOM think appropriate.

(2)OFCOM must prepare and publish standard terms which may (but need not) be used in agreements under this code.

(3)OFCOM may from time to time—

(a)amend or replace a code of practice or standard terms 10published under this paragraph;

(b)publish the code or terms as amended or (as the case may be) the replacement code or terms.

(4)Before publishing a code of practice or standard terms under this paragraph, OFCOM must consult operators and such other 15persons as OFCOM think appropriate.

(a)the publication of amendments to a code of practice or standard terms, or

(b)the publication of a replacement code or replacement 20terms.

Application of this code to the Crown

100(1)This code applies in relation to land in which there subsists, or at any material time subsisted, a Crown interest as it applies in relation to land in which no such interest subsists.

(2)25In this code “Crown interest” means—

(a)an interest which belongs to Her Majesty in right of the Crown,

(b)an interest which belongs to Her Majesty in right of the Duchy of Lancaster,

(c)30an interest which belongs to the Duchy of Cornwall,

(d)an interest which belongs to a government department or which is held in trust for Her Majesty for the purposes of a government department, or

(e)an interest which belongs to an office-holder in the Scottish 35Administration or which is held in trust for Her Majesty for the purposes of the Scottish Administration by such an office-holder.

(3)This includes, in particular—

(a)an interest which belongs to Her Majesty in right of Her 40Majesty’s Government in Northern Ireland, and

(b)an interest which belongs to a Northern Ireland department or which is held in trust for Her Majesty for the purposes of a Northern Ireland department.

(4)Where an agreement is required by this code to be given in respect 45of any Crown interest subsisting in any land, the agreement must be given by the appropriate authority.

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(5)Where a notice under this code is required to be given in relation to land in which a Crown interest subsists, the notice must be given by or to the appropriate authority (as the case may require).

(6)In this paragraph “the appropriate authority” means—

(a)5in the case of land belonging to Her Majesty in right of the Crown, the Crown Estate Commissioners or, as the case may be, the government department or office-holder in the Scottish Administration having the management of the land in question;

(b)10in the case of land belonging to Her Majesty in right of the Duchy of Lancaster, the Chancellor of the Duchy of Lancaster;

(c)in the case of land belonging to the Duchy of Cornwall, such person as the Duke of Cornwall, or the possessor for 15the time being of the Duchy of Cornwall, appoints;

(d)in the case of land belonging to an office-holder in the Scottish Administration or held in trust for Her Majesty by such an office-holder for the purposes of the Scottish Administration, the office-holder;

(e)20in the case of land belonging to Her Majesty in right of Her Majesty’s Government in Northern Ireland, the Northern Ireland department having the management of the land in question;

(f)in the case of land belonging to a government department 25or a Northern Ireland department or held in trust for Her Majesty for the purposes of a government department or a Northern Ireland department, that department.

(7)Any question as to the authority that is the appropriate authority in relation to any land is to be referred to the Treasury, whose 30decision is final.

(8)Paragraphs 50 (offence in relation to transport land rights) and 71(5) (offence in relation to notices on overhead apparatus) do not apply where this code applies in the case of the Secretary of State or a Northern Ireland department by virtue of section 106(3)(b).

(9)35References in this paragraph to an office-holder in the Scottish Administration are to be construed in accordance with section 126(7) of the Scotland Act 1998.

Meaning of “occupier”

101(1)References in this code to an occupier of land are to the occupier 40of the land for the time being.

(2)References in this code to an occupier of land, in relation to a footpath or bridleway that crosses and forms part of agricultural land, are to the occupier of that agricultural land.

(b)is not a street in England and Wales or Northern Ireland or a road in Scotland.

(6)15References in this code to an occupier of land, in relation to land within sub-paragraph (5), are to—

(a)the person (if any) who for the time being exercises powers of management or control over the land, or

(b)if there is no person within paragraph (a), to every person 20whose interest in the land would be prejudicially affected by the exercise of a code right in relation to the land.

(7)In this paragraph—

(a)“agricultural land” includes land which is being brought into use for agriculture, and

(b)25references in relation to England and Wales to a footpath or bridleway include a restricted byway.

Lands Tribunal for Scotland procedure rules

102The power to make rules under section 3(6) of the Lands Tribunal Act 1949 (Lands Tribunal for Scotland procedure rules) for the 30purposes of this code or regulations made under it is exercisable by the Scottish Ministers instead of by the Secretary of State (and any reference there to the approval of the Treasury does not apply).

Arbitrations in Scotland

10335Until the Arbitration (Scotland) Act 2010 is in force in relation to any arbitrations carried out under or by virtue of this code, that Act applies as if it were in force in relation to those arbitrations.

General interpretation

104(1)In this code—

40“agriculture” and “agricultural”—

(a)

in relation to England and Wales, have the same meanings as in the Highways Act 1980,

(b)

in relation to Scotland, have the same meanings as in the Town and Country Planning (Scotland) Act 1997, 45and

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(c)

in relation to Northern Ireland, have the same meanings as in the Agriculture Act (Northern Ireland) 1949;

“bridleway” and “footpath”—

(a)

5in relation to England and Wales, have the same meanings as in the Highways Act 1980,

(b)

in relation to Scotland, have the same meanings as Part 3 of the Countryside (Scotland) Act 1967, and

(c)

in relation to Northern Ireland, mean a way over 10which the public have, by virtue of the Access to the Countryside (Northern Ireland) Order 1983 (SI 1983/1895 (NI 18)), a right of way (respectively) on horseback and on foot;

in relation to England and Wales and Northern Ireland, any leasehold tenancy (whether in the nature of a head lease, sub-lease or underlease) and any agreement to grant such a tenancy but not a mortgage 35by demise or sub-demise, and

(b)

in relation to Scotland, any sub-lease and any agreement to grant a sub-lease,

which is in force, as between an operator and any person, at the time the new 20Code comes into force (and whose terms do not provide for it to cease to have effect at that time).

(5)Expressions used in this Schedule and in the new code have the same meaning as in the new code, subject to any modification made by this Schedule.

25Effect of subsisting agreement

2A subsisting agreement has effect after the new code comes into force as an agreement under Part 2 of the new code between the same parties, subject to the modifications made by this Schedule.

Limitation of code rights

330In relation to a subsisting agreement, references in the new code to a code right are, in relation to the operator and the land to which the agreement relates, references to a right for the statutory purposes to do the things listed in paragraph 2(1)(a) to (c) of the existing code.

Limitation of persons bound

4(1)35A person bound by a code right by virtue only of paragraph 2(3) of the existing code continues to be bound by it so long as they would be bound if paragraph 2(3) of the existing code continued to have effect.

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(2)In relation to such a person, paragraph 4(4) to (12) of the existing code continue to have effect, but as if in paragraph 4(4)(b) the reference to paragraph 21 of the existing Code were a reference to Part 5 of the new code.

Exclusion of assignment, upgrading and sharing provisions

5(1)5Part 3 of the new code (assignment of code rights, and upgrading and sharing of apparatus) does not apply in relation to a subsisting agreement.

(2)Part 3 of the new code does not apply in relation to a code right conferred under the new code if, at the time when it is conferred, the exercise of the right depends on a right that has effect under a subsisting agreement.

10Termination and modification of agreements

6(1)Part 5 of the new code (termination and modification of agreements) applies in relation to a subsisting agreement subject to the following modifications.

(2)The “site provider” (see paragraph 29 of the new code) does not include a person who was under the existing code bound by the agreement only by 15virtue of paragraph 2(2)(c) of that code.

(3)Where the unexpired term of the subsisting agreement at the coming into force of the new code is less than 18 months, paragraph 30 applies (with necessary modification) as if for the period of 18 months referred to in sub-paragraph (3)(a) there were substituted a period equal to the unexpired term 20or 3 months, whichever is greater.

Apparatus, works etc

7(1)Paragraphs 9 to 12 of the existing code (rights in relation to street works, flying lines, tidal waters, linear obstacles) continue to apply in relation to 25anything in the process of being done when the new code comes into force.

(2)Apparatus lawfully installed under any of those provisions (before or after the time when the new code comes into force) is to be treated as installed under the corresponding provision of the new code if it could have been installed under that provision if the provision had been in force or applied 30to its installation.

(3)The corresponding provisions are—

(a)Part 7 (transport land rights), in relation to paragraph 12 of the existing code;

(b)Part 8 (street work rights), in relation to paragraph 9 of the existing 35code;

(c)Part 9 (tidal water rights), in relation to paragraph 11 of the existing code;

(d)paragraph 70 (power to fly lines), in relation to paragraph 10 of the existing code.

840Any agreement given in accordance with paragraph 26(3) of the existing code for the purposes of paragraph 11(2) of that code has effect for the purposes of paragraph 60 of the new code as if given in accordance with paragraph 100 of that code